Justice David Souter

Recently retired Supreme Court Justice David Souter's papers from his service on the nation's high court have been turned over to the New Hampshire Historical Society where they won't be made public until 2059. Former Supreme Court correspondent for The New York Times Linda Greenhouse, in a recent column the newspaper's op-ed page, lamented the decision to keep the papers under wraps for decades to come.

Although Greenhouse, a member of the ACS Board of Directors, wrote that she tried to convince herself that she really "didn't care" about missing out on examining Souter's papers, she thought of some high court mysteries that she would love to crack.

Greenhouse wrote:

In the interests of space, I will mention just one of these mysteries, from the court's last term.

It is the surprising outcome of the big Voting Rights Act case, in which the court had undertaken to decide whether Congress exceeded its authority in renewing the requirement for some states and jurisdictions, mostly in the South, to obtain federal approval before making any change to a voting procedure, however minor. This "preclearance" provision, Section 5 of the act, was the key to the law's effectiveness over three decades in expanding and preserving minority voting rights.

The court's opinion, by Chief Justice Roberts, ducked the constitutional issue on the ground that the small Texas sewer district that brought the case might be entitled to "bail out" of the law and so might have nothing to complain about. This was an implausible outcome, to put it mildly, because the statute's text actually made the sewer district and other small jurisdictions like it ineligible to escape the law's provisions.

Chief Justice Roberts has won praise in some quarters for a statesmanlike, "minimalist" solution to a hot-button constitutional problem. I have strong doubts as to whether the praise is deserved. My belief is that he would have gone as far in the direction of declaring Section 5 unconstitutional as he could have and still hold a majority.

The court surely did not accept this case for argument (as opposed to simply affirming the law's constitutionality, as the Bush administration had urged) in order to decide whether the Northwest Austin Municipal Utility District No. 1 was entitled to bail out. I suspect that a member of the once-eager majority, perhaps Justice Anthony M. Kennedy, got cold feet, and that one or more of the liberal justices, maybe even Justice Souter, brokered a deal that allowed the court to extricate itself from a tight spot. My evidence for this theory? Along with evidence for any other theory, it will be locked in a vault in Concord, N.H.